Preferential Right under Section 22 in Joint-Family Pre-emption Disputes

1. Factual Background and Procedural History

The dispute concerns undivided ancestral land (gut Nos. 488, 490, 595) in Village Radi, Taluka Ambajogai, District Beed. The genealogy is as follows:

• Keshav (deceased intestate) had three sons: Balkrish­na/ Balkrushna (died 1981), Haribhau (Defendant No. 6) and Sadashiv (Defendant No. 7).
  
  
• The plaintiffs (Respondents in the appeal) are the sons of Balkrushna (i.e., Sham Selukar etc.) and further family members (Defendant Nos. 8 & 9 are step-brothers).
• Defendant Nos. 6 & 7 (the uncles) along with Defendant Nos. 8 & 9 (step-brothers) are all within the same joint family. The purchasers (Appellants in the second appeal) are persons who acquired portions of the undivided property via sale-deeds executed by Defendant Nos. 6 to 9 in favour of purchasers (Defendant Nos. 1 to 5 in the original suit).
  
  
• The sale-deeds in question are as follows:
  
  
  1. 29/04/1989 – vendors Defendant Nos. 8 & 9, purchasers Defendant Nos. 4 & 2 – land measuring 1H 41 Ares, valuation Rs. 38,000.
     
     
  2. 23/06/1989 – vendor Defendant No. 6, purchasers Defendant Nos. 1,2,4,5 – 3H 23 Ares, valuation Rs. 73,000.
     
     
  3. 23/06/1989 – vendor Defendant No. 6, purchasers Defendant Nos. 1,2,4,5 – (duplicate) 3H 23 Ares, valuation Rs. 73,000.
     
     
  4. 23/06/1989 – vendor Defendant No. 6, purchaser Defendant No. 3 – 25 Ares + well, valuation Rs. 8,000.
     
     
• Plaintiffs filed Special Civil Suit No. 25 of 1990 when they “learnt about the alienations” and when their peaceful joint-possession had been obstructed by the purchasers. They claimed that the lands were undivided joint-family property, and that the transfers bypassed their preferential right of pre-emption under Section 22 of the Hindu Succession Act, 1956 (“the Act”).
  

Procedural History

• The Trial Court (on 30 March 1992) decreed the suit, held that the sale transactions were void due to fraud by the vendors, declared that the plaintiffs had the right of pre-emption, and directed that they deposit the purchase price within ninety days. The purchasers were restrained from disturbing plaintiffs’ possession.
  
  
• The plaintiffs contested the quantum of consideration by filing Regular Civil Appeal No. 82/2001; the purchasers cross-objected. By common judgment dated 30 July 2005, the appeal and cross-objection were dismissed; the Trial Court decree was largely affirmed with some modification.
  
  
• The purchasers (defendants) then preferred Second Appeal No. 1705 of 2005; the original plaintiffs also preferred Second Appeal No. 109 of 2014 (challenging the quantum of consideration/finding of fraud).
  
  
• On 17 October 2025 the Aurangabad Bench of the Bombay High Court delivered judgment, dismissing both second appeals and confirming the common judgment/decree of the lower Courts, with the modification that the plaintiffs shall pay the purchase price in ninety days with simple interest at 6 % p.a. from 31 December 1992.
  

2. Identification of Legal Issues

The Court framed the substantial questions of law for consideration as follows: 

1. Whether the right of pre-emption under Section 22 of the Act is exercisable when the vendors (Defendant Nos. 6 & 7) are not Class I heirs of the deceased?
   
   
2. Whether the property owned by Defendant Nos. 6 & 7 is liable to be transferred to the plaintiffs under Section 22 of the Act?
   
   
3. Whether the plaintiffs can obtain the title of the suit lands under Section 22 of the Act without setting aside the sale-deeds in question?
   
   
4. Whether it was an error for the Courts below to grant an extension of time to deposit the sale amount, which purportedly violates Order XX Rule 14 of the Code of Civil Procedure, 1908 (“CPC”)?
   
   
5. Whether the extension of time granted by the lower Appellate Court is logical and permissible?
   
   
6. Whether Defendant Nos. 1 to 4 are entitled to the benefit of Section 44 of the Transfer of Property Act, 1882 (“TP Act”)?
   

Thus, the core issues revolve around preferential rights under Section 22, status of heirs, requirements of pre‐emption actions (including deposit of consideration), permissible protections under the TP Act and CPC, and whether the purchasers were entitled to certain defences.

3. Arguments of the Parties

Appellants (Purchasers) / Defendants

• The appellants contended that the plaintiffs had no right of pre-emption under Section 22 of the Act because the vendors (Defendant Nos. 6 & 7) were not Class I heirs of the deceased (they were uncles of the deceased sons) and thus Section 22 did not apply to the transfer.
  
  
• They argued that the plaintiffs were estopped from asserting the right because they had knowledge of the transactions yet did not act in time.
  
  
• They further asserted that the lower Courts erred in granting an extension of time for deposit of purchase money (contrary to Order XX Rule 14 CPC).
  
  
• They sought protection under Section 44 TP Act, claiming that as purchasers of undivided shares, their remedy was partition rather than pre-emption, meaning they were not liable to be deprived of title.
  
  
• They also raised the defence of limitation‐bar.
  

Respondents (Plaintiffs)

• The respondents argued that the suit lands are ancestral, undivided joint family properties and there had been no partition among the members. Therefore, the plaintiffs (sons of Balkrushna) and Defendant Nos. 6 & 7 (his brothers) constituted a joint family surviving the deceased propositus (Keshav).
  
  
• They contended that the plaintiffs are Class I heirs under the Act, and the vendors (their uncles) had no right to alienate in disregard of the preferential right of the plaintiffs.
  
  
• They submitted that the purchasers were strangers to the joint family and their title was subject to the right of pre-emption; they had no separate possession or partition, so defences under Section 44 TP Act did not apply. 
• They maintained that the sale‐deeds need not be set aside; the pre-emotive right, once exercised properly under the statute (Section 22) and CPC Order XX Rule 14, suffices to vest interest in the plaintiffs.
  

4. Court’s Analysis and Reasoning

Status of Joint Family and Class I Heirs under Section 22

The Court first considered whether the plaintiffs qualified as Class I heirs under Section 22 of the Act, since preferential rights under that section are available only to heirs in Class I. 

• The Court observed that although it was not clearly pleaded when Keshav died, Keshav died intestate and the suit lands remained undivided; the plaintiffs and Defendant Nos. 6 & 7 continued in joint possession.
  
  
• The Court held that if Keshav is considered the propositus, his sons and their descendants would fall within Class I; the plaintiffs (sons of a deceased son) would qualify under Class I, and their uncles (Defendant Nos. 6 & 7) would fall under Class II.
  
  
• The Court laid down relevant parameters: status of property/family, time of death, time when partition opens, inter se relationship, manner of devolution under Section 6 of the Act. 
• Given the evidence of undivided joint family, continuous joint possession, and absence of partition, the Court held that the plaintiffs did have preferential right under Section 22.

Application of Preferential Right Under Section 22

• The Court reiterated the text of Section 22 of the Act (quoted in judgment) which grants a preferential right to acquire interests in immovable property of an intestate where two or more heirs in Class I propose to transfer their interest.
  
  
• The Court held that there was no requirement to first set aside the sale‐deeds: once the consideration is fixed and the plaintiffs deposit the same within the time specified (Order XX Rule 14 CPC), the right accrues and title is deemed to have arisen from the date of payment.
  
  
• On the estoppel defence, the Court found no basis: though plaintiffs had knowledge of transaction, there was no evidence of refusal of offer made by vendor to plaintiffs.
  

Extension of Time Under Order XX Rule 14 CPC

• The Court invoked Order XX Rule 14(1)(a),(b) CPC:
  
  “Where the Court decrees a claim to pre-emption … the decree shall- (a) specify a day on or before which the purchase-money shall be so paid, and (b) direct that on payment … the title shall be deemed to have accrued … but if not paid the suit shall be dismissed.”
  
  
• The appellants contended that extension of time is impermissible. The Court held that in the present case there was stay of execution of decree during appeal. Since the stay prevented implementation, time effectively remained tolled. The Appellate Court fixing 90 days after the stay did not amount to impermissible extension. 
• Thus, the Court found no error in the lower Courts fixing the 90-day period for deposit. 

Section 44 of the Transfer of Property Act

• The purchasers claimed protection under Section 44 TP Act (pertaining to sale of undivided share in joint family / coparcenary property). The Court noted that Section 44 applies when one coparcener sells his share and the purchaser seeks partition for his share.
  
  
• The Court pointed out that the purchasers had not sought partition despite acquiring undivided share in 1989, and there was no separated possession or partition suit filed. Therefore they could not claim that protection.

Conclusion on Sale-Deeds and Title of Purchasers

• The Court held that since the suit lands were undivided joint‐family property, and the plaintiffs held joint possession and had preferential right, the deeming provision under Order XX Rule 14 CPC meant that upon deposit of the purchase money, the plaintiffs’ title would accrue from that date and there was no need to have the sale-deeds expressly set aside.
  
  
• The purchasers, by failing to seek partition and by failing to show separate possession, could not avoid the operation of Section 22 preference in favour of the plaintiffs.
  

Precedents and Doctrinal Considerations

• The Court referred to classic decisions on Section 22, e.g., Ashutosh Chaturvedi v. Prano Devi (2008 15 SCC 610) and others dealing with preferential rights.
  
  
• It emphasised that preferential right under Section 22 is a “weak right” compared to proprietary rights, but nevertheless enforceable in appropriate cases.
  
  
• On extension of time, the Court referred to the decision in Sulleh Singh v. Sohan Lal (AIR 1975 SC 1957) for the proposition that stay of decree prevents dismissal for non-payment.
  

Policy and Values

• The judgment underscores the protective function of Section 22 in ensuring that Class I heirs are not deprived of their preferential right in undivided family property when a co-heir attempts alienation.
  
  
• It also emphasises joint family continuity and non-partition as key factors: where a joint family remains undivided with continuous joint possession, alienations by one member must meet the procedural safeguards of the Act.
  
  
• The Court respects procedural safeguards (deposit of consideration, timely proceedings) while balancing purchaser rights (through partition remedy) and family rights (pre-emption).
  

5. Final Conclusion and Holding

The Court ultimately dismissed Second Appeal No. 1705/2005 and Second Appeal No. 109/2014, thus confirming the judgments and decrees of the lower Courts with the modification that the plaintiffs shall deposit the prescribed purchase price with simple interest at 6 % p.a. from 31 December 1992 within 90 days from the date of judgment.

Key legal principles laid down:

• A preferential right under Section 22 of the Hindu Succession Act is available to heirs classified under Class I of the Schedule; in a joint family where the property remains undivided and in joint possession, sons of a deceased son (pre-deceased) can claim as Class I heirs.
  
  
• There is no requirement to set aside the original sale-deeds for triggering a pre-emption decree; once consideration is fixed and paid within the time fixed by the Court under Order XX Rule 14 CPC, title is deemed to have accrued to the pre-emptor from the date of payment.
  
  
• Where the purchaser of an undivided share fails to pursue partition or establish separate possession, he cannot claim the protection of Section 44 of the Transfer of Property Act in a pre-emption context.
  
  
• The Courts may specify a term for payment of purchase money (e.g., 90 days), and extension or application of such term is permissible where stay of execution has tolled or suspended the operative time during appeals.
  

This judgment reinforces the procedural and substantive safeguards under Section 22 in joint‐family pre-emption matters, emphasising that alienations in undivided joint families must give due opportunity to Class I heirs and that purchasers cannot ignore such rights by relying solely on sale-deeds.

FAQs:

1. What is a “preferential right of pre-emption” under Section 22 of the Hindu Succession Act?

A preferential right of pre-emption means that when an interest in immovable property of an intestate heir (or business) devolves upon two or more Class I heirs, if any one of those heirs proposes to transfer his interest, the other Class I heirs have a prior right to acquire that interest. The statutory mechanism allows them to step into the vendor’s shoes by depositing the prescribed consideration within a specified time.

2. Who qualifies as a Class I heir under Section 22, and why does it matter?

Class I heirs are those persons listed in the Schedule to the Act (e.g., sons, daughters, widow, mother of the deceased). The status matters because only Class I heirs can invoke Section 22; if the vendor is not a Class I heir, the preferential right may not apply. Courts look at family status, time of death, whether property is ancestral and undivided, and whether a partition has opened the devolution of interest.

3. Does the purchaser of a joint family property need to get the original sale deed set aside to allow a pre-emption suit?

No. Under Order XX Rule 14 CPC, when a pre-emption suit is decreed, the Court fixes a time by which the purchase money must be paid; upon payment the title of the pre‐emptor is deemed to accrue from the date of payment. Thus, the sale-deed need not necessarily be declared void; it suffices that the statutory procedure is followed and the amount paid in time.

4. Can a purchaser claim protection under Section 44 of the Transfer of Property Act when he buys an undivided share in joint family property?

A purchaser may claim relief under Section 44 (which allows a coproprietor to sue for partition or claim his share) only if he has acquired an undivided share and has sought partition or separate possession. If a purchaser acquires land in a joint family context but fails to file a partition suit or obtain separate possession, he cannot use Section 44 as a shield against a pre‐emption claim by Class I heirs.

5. What happens if the pre-emptor fails to deposit the purchase money within the period fixed by the court?

If the pre-emptor fails to pay the prescribed amount by the date fixed under Order XX Rule 14 CPC, then the suit may be dismissed with costs and the title remains with the purchaser. However, if execution of the decree is stayed during appeal, the time may be considered tolled and the court may fix a fresh period for payment rather than automatically dismissing the suit.

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